On Tuesday, May 23, 2017, the Senate Committee on Commerce, Science, and Transportation will hold a hearing in the Subcommittee on Space, Science, and Competitiveness entitled, “Reopening the American Frontier: Exploring How the Outer Space Treaty Will Impact American Commerce and Settlement in Space.” The hearing will be held at 2:30 p.m. in room 253 of the Russell Senate Office Building and will be live streamed. I am honored to be included on the witness list and look forward to testifying.
Sometimes when you start a new project or line of inquiry it’s helpful to knock out the deadwood first. Then you can work on the bits that will get you somewhere. I want to understand private property rights in outer space, and lots of people say the Outer Space Treaty forbids a private person’s rights in “real property,” namely, land. Article II of the Outer Space Treaty isn’t deadwood. It forbids national appropriation in outer space. Article IX, however, might be. I want to address it first because I have heard theories floated about how it may protect some property interests.
In law school we learned that property rights were a collection of rights, which one could separate and parcel out. My property professor called them a bundle of sticks. You could have a lifetime interest in a bit of land but no ability to sell it. That’s not the whole bundle, but it’s not nothing. You could lease someone’s land for a year, but then have to leave it. (That’s more of a twig.) Both the lease and the lifetime interest constitute limited property rights. My question then is: does Article IX afford some form of property right, not all of them, necessarily, but some?
It’s always nice, when practicing law, to read what the words say, since they are the best expression of what someone meant. When you’re writing a law or regulation, you’re supposed to say what you mean and mean what you say, so we’ll figure that applies to treaties, too. Given the Supreme Court’s propensity for treating treaties like contracts, this is likely a sound approach. So, what does Article IX say? Continue reading
What follows is my written testimony to the House Space Subcommittee on the role the Outer Space Treaty plays in the regulatory responsibilities of the United States. It’s long, and much of it will be familiar to regular Ground Based readers, but there are some new thoughts regarding paths forward, and it puts together what I have covered here over the past months.
Testimony of Laura Montgomery
Before the Committee on Science, Space, and Technology
Subcommittee on Space
Regulating Space: Innovation, Liberty, and International Obligations
March 8, 2017, Rayburn Building
Chairman Babin, Ranking Member Bera, and Members of the Subcommittee, thank you for inviting me to participate in this important discussion and to address the role Article VI of the Outer Space Treaty plays in the regulatory responsibilities of the United States. As someone who hopes to see people beyond Low Earth Orbit again in my lifetime, and who hopes to see commercial space operations other than launches, reentries, and communications satellites, I respectfully recommend that the United States not regulate new commercial space activities such as lunar habitats, mining, satellite servicing, or lunar beer brewing for the wrong reason: the belief that Article VI makes the United States regulate either any particular activity or all activities of U.S. citizens in outer space. Regulations already cost American industry, the economy, and the ultimate consumer upwards of four trillion dollars, according to recent research from the Mercatus Center, so we should think carefully before creating more drag on the space sector.
A misunderstanding of the Outer Space Treaty looms as possible regulatory drag, because many claim Article VI of the treaty prohibits operations in outer space unless the government authorizes and supervises—which I’ll refer to as “oversees” or “regulates”—those activities. Although Article VI states that “[t]he activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty,” to interpret this as forbidding unauthorized, private space activity is wrong for three reasons. The treaty does not forbid private operators from operating in outer space. It does not say that either all or any particular activity must be authorized. And, finally, Article VI is not, under U.S. law, self-executing, which means that it does not create an obligation on the private sector unless Congress says it does.
In order to put to bed the regulatory uncertainty arising out of these misunderstandings, Congress could take a number of different approaches. The most certain and long-lasting approach, however, and the one that would reduce the opportunities for confusion, misunderstanding, and regulatory overreach, would be for Congress to prohibit any regulatory agency from denying a U.S. entity the ability to operate in outer space on the basis of Article VI. Continue reading
On February 7, 2017, at the FAA’s Commercial Space Transportation Conference, Representative Brian Babin, Chairman of the Space Subcommittee of the House Science, Space and Technology Committee spoke on how the U.S. can fulfill its international obligations for commercial actors in outer space. If you wish to read his whole speech, this link will take you there: FAA conference Feb 7 2017 . Among other topics, he addressed questions raised by Article VI. As GroundBased readers know full well, Article VI of the Outer Space Treaty states that “[t]he activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.” The Chairman responded to this provision in a very thoughtful fashion. First, he lays out the domestic philosophy of governing.
[T]he government’s role isn’t to give you permission to do something. The government’s role should be limited to only those areas that require its intrusion, which is a high bar. The burden of proof shouldn’t be on the individual to demonstrate the “right” to act; the burden of proof should be on the state when it seeks to restrict liberty.
In thinking about how this clear statement of philosophy might play out, I see two possible paths. In the one path, the executive branch’s agencies would recognize that because Article VI is not self-executing, and if Congress hasn’t passed a law like it did when it told the FAA to authorize launch, reentry and spaceports, then Article VI poses no barrier to any particular activity. In the second, Congress itself would pass legislation reminding everyone of that point. (I am nervous about processes where Congress would assign an agency the job of “defaulting to approval.” I suspect that was the original intent behind the FAA’s payload review, but I’m not sure it’s worked out that way. The better course might be to create a notification regime, or, better yet, to ensure that an applicant need apply for nothing to operate in outer space.)
The Chairman also discussed what he did not want to see:
[T]he Constitution places the responsibility upon Congress to make legislative determinations regarding what requires federal authorization and supervision. It should not be the case that everything anyone does in outer space requires federal approval. Article 6 grants States the discretion to decide what must be authorized to assure conformity with treaty obligations and how it is to be supervised. Transferring this authority to the executive branch raises serious concerns given how vast the scope of regulatory oversight would be.
Legislative Responsibility and Due Process. Chairman Babin raises a couple of interesting legal points with this observation. As he notes, it is Congress, not the Executive Branch that makes the legislative decisions about what requires federal oversight. Also, if the U.S. decides that more private activities in outer space require oversight, we should identify what those activities are. As the Supreme Court has said on more than one occasion, due process considerations of notice and transparency require that an ordinary person be able to tell what is forbidden and what is required. Saying everything must be authorized would be so broad as to create constant confusion. People would convince themselves that the law cannot possibly apply to playing the piccolo or anything else equally mundane. But we lawyers read the words of a law with exactitude, and if the law says everything then the law means everything. The agency charged with enforcing any such law would have to apply the words as written. Recently, we’ve seen pie in the sky and a proposal for lunar brewing. Are those activities so hazardous they require the expenditure of taxpayer resources?
Discretion. The Chairman is correct to note that the treaty “grants States the discretion to decide what must be authorized to assure conformity with treaty obligations and how it is to be supervised….” (Emphasis added). This means that a country might decide not to regulate the lunar harpist, but go all in on the lunar brewer.
The Chairman also echoes the Supreme Court in noting that, for a treaty that is not self-executing,
the executive branch, unless explicitly authorized by Congress, should not deny an American citizen the right to explore and use Outer Space. I hope that the incoming Trump Administration will closely examine this topic, because this question of how we will regulate our private sector activities is not simply academic. I believe it is one of the fundamental space policy questions of our time. America is great because it is a country where you have the freedom to create without government permission. We are all free, unless we chose, through our legislative process, to limit our freedoms.
Self-executing. As this blog has discussed, Article VI is not self-executing, which means that Congress must provide direction before the executive branch may attempt to enforce that provision. It would be wonderful indeed if the new Administration were to issue a statement recognizing that if Congress has not forbidden a space activity, then that activity is allowed, thus putting to bed the regulatory uncertainty that plagues some. Then, if an agency sought more authority over the private sector it would have to go through the usual exercise of demonstrating to Congress a real need to burden the private sector.
After last Friday’s post on the Outer Space Treaty’s Article VI, which states that the activities of non-governmental entities in outer space shall require authorization and continuing supervision by the appropriate state party to the treaty, I had some interesting conversations on the topic at a couple of conferences. One person pointed out that the FAA’s payload review authority allowed the FAA to take foreign policy interests into account when making a payload determination. This is true and not inappropriate, but should not be applied for Article VI reasons in light of the fact that the provision is not self-executing.
When conducting a payload review, the FAA must do so consistent with public health and safety, safety of property, national security and foreign policy interests. The FAA’s foreign policy authority may be a double-edged sword for industry. (If it were a light saber, we’d speak of whether it glowed blue or red.)
On the one hand, the FAA could use its powers to encourage, facilitate and promote. For example, were a prospective lunar harpist to seek a payload determination from the FAA, the FAA would engage in its normal practice of inter-agency consultation. The U.S. Department of State might raise concerns with respect to the fact that Congress has not passed legislation to regulate harp playing despite Article VI providing that all States Parties to the treaty authorize and continuously supervise the acts of their nationals in outer space. With its own foreign policy authority, independent of that of the State Department, the FAA could determine that because Article VI is not self-executing, until Congress acts, the U.S. has not determined that playing the harp constitutes the type of activity requiring oversight under Article VI. Having satisfied its consultation obligations the FAA could then issue a favorable payload determination.
Conversely, the FAA could worry that other countries might raise issues about Article VI authorization and continuing supervision of a lunar harpist and contemplate denying the harpist’s requested payload determination. Such a determination should, however, run afoul of the fact that Congress has not determined that lunar harp playing is the kind of activity that requires federal oversight. The FAA must make any policy determinations in accordance with U.S. law, and a non-self-executing treaty is not, as noted by the Supreme Court’s Medellin opinion, binding federal law. To treat it as such would raise the question of whether the FAA was usurping Congress’s legislative role.
Lunar harp playing is a vaguely ludicrous example of an activity that could take place extra terrestrially, but it makes the point that the Outer Space Treaty left the determinations of what requires authorization and continuing supervision to each signatory nation. If Congress hasn’t decided that lunar harpists or miners require oversight for their respective activities, they don’t. The treaty does not say which activities must be regulated, and in the United States that determination lies with Congress. For the FAA to say that it had the ability to make such determinations about a non-self-executing treaty would be to say that it, rather than the legislative branch, could decide which activities required federal oversight.
I was going to title this “Does Planetary Protection Apply to the Private Sector?” However, various corners of the internet mock the use of questions in headlines, so I was too chicken. But, at the end of the day—or perhaps of the century—that is the question; and in the United States the answer must come from Congress.
Background Article IX of the Outer Space Treaty provides that States Parties must pursue their studies and explorations so as to avoid “harmful contamination” of the moon and other celestial bodies and “adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose.” As a science agency that is part of the U.S. Government, NASA has interpreted this to mean that its missions must not only avoid what the ordinary person might consider harmful contamination, but microbial contamination as well, limiting the presence of bacterial spores on any surface to no more than 300,000. Accordingly, NASA requires the sterilization of its spacecraft to avoid bringing microorganisms to Mars. ESA, the European Space Agency, follows similar measures.
These measures are expensive. ESA describes the creation of clean rooms. NASA bakes its spacecraft. The space agencies spend money on preparing protocols, training technicians, sampling, testing, and devising new and more stringent requirements. Although it is difficult to find information about the costs of planetary protection, one expedition cost somewhere between $80 to $100 million in 2003 dollars.
People are full of microorganisms. I’m no biologist, but I think there are far more than 300,000 bacterial spores on the surface of the human body, never mind what’s inside us. Are we planning to prohibit people on Mars? Probably not. I hope not.
The question does, however, highlight the existence of competing interests. Science agencies want to do science. They have interpreted the directive against “harmful contamination” to mean no harmful contamination to science. The space agencies have now had decades to perform their scientific studies and exploration, and others, including commercial actors, are interested in going to Mars as well. This means that other human interests aside from science will take the stage. Those interests may range from space settlement, with its attendant needs for air, agriculture (albeit in high-tech greenhouses), and manufacturing, to tourism, leisure, art, and mining.
These interests are not obviously less important than the question of whether there is life on Mars. That’s an important issue, even if the life found is less complex than Edgar Rice Burroughs’ Tars Tarkas. The question is, who decides?
Congress decides. Continue reading